The State Bar Court
Review Department on Friday recommended that a San Francisco attorney be disbarred
for serious misconduct while acting as a civil trial juror.

A State Bar Court hearing judge found
that Francis T. Fahy voted to find a defendant not liable for negligence in
order to end a likely jury deadlock so that he could return his attention to
his law practice, lied to the trial judge about his verdict and disrespected
the courts.

Fahy, who was placed on
a two-year active suspension in 2007 for willfully misappropriating trust
funds, was serving as a juror in a 2004 medical negligence case involving an
ophthalmologist’s performance of laser eye surgery when he allegedly told other
jurors he would change his vote if the trial judge did not declare a mistrial
after deliberations stretched into a second week.

San Francisco Superior
Court Judge David Ballati questioned jurors after the foreperson reported that
“some jurors” had changed their votes solely to end the deliberations, but Fahy
denied having based his vote on anything but the trial evidence and the court’s
instructions, and Ballati entered a verdict for the defense.

The plaintiff’s counsel,
San Mateo attorney Dan M. Himmelheber,
subsequently sought a new trial, and introduced a declaration bearing Fahy’s
signature indicating that Fahy had voted for a defense verdict solely to end
deliberations and return to his practice.

Statements Disavowed

However Fahy—despite Himmelheber’s
testimony that he had drafted the declaration with Fahy’s input and obtained
the signature from Fahy after driving to his house—disavowed the statements,
even though Fahy acknowledged the signature appeared to be his.

Fahy contended the
signature was forged, or obtained through trickery or a mistake, but Ballati
determined that Fahy’s testimony was “obfuscating and not credible,” and
ordered a new trial, which the Court of Appeal upheld.

After having recommended
discipline two months earlier over Fahy’s misappropriation of client funds in
1999 or 2000, the State Bar in April 2007 began formal disciplinary proceedings
charging Fahy with failing to comply with his statutory duties as a juror,
committing moral turpitude by lying to Ballati and attempting to influence the
jury for an improper purpose, and failing to maintain respect for the courts by
his juror misconduct.

The hearing judge
concluded there was no evidence to support the charge Fahy attempted to
influence other jurors and that the lack of respect charge was duplicative of
the other alleged misconduct, but found Fahy culpable of the other charges,
rejecting Fahy’s contention that his signature had been forged.

Findings Upheld

Fahy appealed to the
Review Department, but the department—in an opinion by Retired Presiding State
Bar Court Judge Pro Tem Ronald W. Stovitz, sitting by designation—upheld the
hearing judge’s findings despite concluding that the hearing judge should have
found Fahy culpable of the lack of respect charge without assessing added
discipline.

Citing Fahy’s
“significant, recent actual suspension” imposed by the Supreme Court in July
2007, Stovitz wrote that the hearing judge’s recommendation of disbarment was
“well merited,” and the Review Department recommended that Fahy’s name be
stricken from the roll of attorneys.

The department also
recommended that Fahy not be allowed to resume practice without undergoing a
formal reinstatement proceeding proving his rehabilitation, moral fitness, and
learning and ability in the law by clear and convincing evidence.

Stovitz explained:

“What is of great
concern is [Fahy’s] continued avoidance of responsibility for his misdeeds….
Rather than focus on his own behavior to recognize his ethical misconduct and
to seek to avoid it in the future, [Fahy] has in his defense in the prior
matter attacked others involved in the State Bar Court proceeding and again, in
the present matter, he has extended his disaffection with the State Bar and the
State Bar Court by commencing a federal civil rights action against the
justices of the Supreme Court, the judges of this court and the State Bar
attorneys assigned to this matter.

“The purposes of
disciplinary proceedings are not to punish [Fahy] but to protect the courts,
the public and the legal profession from those members of the bar who are
unable or unwilling to discharge their duties ethically…. Manifestly, looking
at [Fahy’s] prior and current proceedings, he has demonstrated that clients,
courts and the legal profession are at serious risk of future harm should he be
allowed to continue to practice.”

Fahy could not be
reached for comment.

Judges Judith A. Epstein
and Catherine D. Purcell joined Stovitz in his opinion.